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A jeremiad7 



AX ADDEESS DELIVERED BEFORE THE 



Kansas State Bar Association 



WEDNESDAY, JANUARY 15, 1896 



m.i 



BY MR. A. L. WILLIAMS. 

OF THE TOPEKA BAR. 



TOPEKA, KANSAS: 

CRANE & COMPANY, PRINTEPvS. 

lS-9 6. 



<<'J' 



5 Mv'09 



^'An error is not the better for being common, nor truth the worse 
for having been neglected ; and if it toere put to the vote anyichere in 
the world, I doubt, as things are managed, whether truth loould have 
the majority, at least while the authority of men, and not the exam- 
ination of things, must be the measure."— l,oci<.^. 



'^^JUmmiad^^ 



Gentlemen : All men hate those who proph- 
esy evil. The visionaries who go around see- 
ing only the end of the world in all things, 
and finding in the ordinary occurrences of life 
evidences in support of their gloomy prognosti- 
cations — "gloomy pessimists," to make use of 
the exuberant expression of one of our Topeka 
editors — are generally looked upon as the pests 
of society, and their presence shunned by all 
sunny-tempered people. 

Noah, pottering away at his ark and explain- 
ing to his fellows the oncoming of the flood 
which should destroy the world ; Jeremiah, 
pouring forth his lamentations over the new 
evils about to fall upon his beloved Jerusalem ; 
Isaiah, pumping his lungs to their full capacity 
in his effort to outdo his rival prophets ; Hosea, 
in more temperate language doing his share of 
wailing; Daniel, recalling to Nebuchadnezzar 



his dreams and reading the sad interpretation 
thereof, were undoubtedly unpopular in their 
day, and were both jeered and guyed by the 
people around them. And yet it has sometimes 
seemed to me that the fellows who jeered Noah, 
and excited the irrepressible mirth of the loaf- 
ers by asserting that it was not going to be 
much of a shower anyhow, were not of neces- 
sity wiser than old Noah, and certainly, though 
they may have laughed last, did not laugh best. 
And so, when the evils came upon Jerusalem 
which Jeremiah and Isaiah and their friends 
had foretold, it may possibly have occurred to 
some of the survivors who fled from Jerusalem 
to escape captivity and death, that it might 
have been well, possibly, to have received the 
words of the prophets, if not with respect, at 
least without derision. 

Without being either a ship -builder or pro- 
phet, it is possible that what I am about to say 
may sound like a jeremiad, for it has occurred 
to me that it might be well to discuss some- 
what the philosophy of our form of government 
and to call attention to the dangers which I 
sincerely believe beset it. Without resorting to 
Fourth of July oratory, it may be said as pro- 
foundly and philosophically true, that our form 
of government is the best the world has ever 
known, though the palm of best government 



may fairly be disputed by England, from whom 
we borrowed most of our ideas of government ; 
and, while contending that onrs is best, I assert 
that its superiority consists in only one thing, 
which in the course of this paper I shall en- 
deavor to point out. There is a difference, too 
often lost sight of, between the best form of 
government and a perfect form of government. 
There is, and in the nature of things there can 
be, no such thing as either a perfect govern- 
ment or a perfect form of government. Man, 
being imperfect, cannot create the perfect. Be- 
ing finite, he cannot make the infinite. And 
all forms of government, from the very neces- 
sity of the case, have inherent within them the 
seeds of decay and death, ]3recisely as the in- 
dividual man does, and the best that may be 
hoped for in government is, that by care and 
attention, by patriotism and by knowledge, its 
existence may be prolonged. That all govern- 
ments and all forms of government have their 
periods of youth, growth, maturity, old age, de- 
cay and death, is true, and, being ordained by 
unerring wisdom, is just. 

Before pointing out what I conceive to be the 
strong and the weak points of our own govern- 
ment, it may not be amiss to make a hasty sketch 
of the evolution of government, as determined by 
the experience of the -past ; and, while it may 



6 

Beem like dealing in the commonplace to men- 
tion tilings with which you are all familiar, it 
may yet have a certain degree of value if it 
provokes new inquiry upon the part of lawyers 
as to the origin and springs of human govern- 
ment. 

The first government, in the very nature of 
things, was the family, and it was an unlimited 
monarchy, the father having absolute dominion 
in every respect over the lives of every member 
of his family, and would have had over their 
property but for the fact that they possessed 
none — it all being in him. This earliest form 
of monarchy was created by a law of nature, 
and not by circumstances. Love impelled the 
father to protect his offspring, and strength en- 
abled him to secure their obedience. It fre- 
quently happened that during the lifetime of 
the father, many of his children reared families 
of their own, and the group thus created was 
known as the patriarchal, the father of the fam- 
ily being the patriarch and as absolute in his 
dominion over his sons' children as over the 
sons themselves. Even in this primitive govern- 
ment there arose a natural division which formed 
the basis of all succeeding governments, namely, 
the one, the few, and the many ; and no system 
of government has ever been devised or can be 
devised which does not take notice of these three 



classes. In the case I have mentioned, the pa- 
triarch, as head of the family, has constituted 
the one. He naturally preferred some one of 
his sons to the others, as is abundantly shown 
by the Bible account of the patriarchs, and the 
favoritism shown to one son would give to that 
son and to his children a certain degree of su- 
periority over the other members of the family 
and thus constitute a crude aristocracy. 

In the course of time the patriarchal family 
would become so large that it became a tribe, 
capable of defending itself against aggressions 
and making war upon its neighboring tribes, 
but continuing always under patriarchal rule, 
though the title was changed to that of chief. 
In the course of time, by intermarriages, sev- 
eral tribes became united under one head, when, 
of course, there could no longer be a patri- 
archal chief in the original acceptation of that 
term. And here we find the first rudiments of 
established government. Some one man, by 
reason of his greater wealth or strength, or 
numerical following, would become a leader. 
An intermediate class would be constituted in 
the same way, and become the aristocracy of 
the crude government; while the masses would 
constitute the common people. After a sufii- 
cient number of tribes had united to form what 
might be called a state,^ the division heretofore 



pointed out as constituting the one, the few 
and the many, would become more pronounced, 
and enter directly into the constitution and 
form of any government to be created for the 
government of such state. There would thus 
be, as there always have been, the elements of 
the only three simple forms of good government 
which the world has ever known, namely, mon- 
archy, aristocracy, and democrac-y. Each of 
tliese three forms of government has an evil 
form attendant upon it. and into which, sooner 
oi- later, every government the world has ever 
known has merged. The evil shadow following 
monarchy is despotism, following aristocracy is 
oligarchy, and following democracy is anarchy ; 
and if the history of tlie past, supplemented by 
our knowledge of the weakness of human na- 
ture, be any criterion, we may safely assume 
that what has been will be, and that every 
government now existing upon the earth, if it 
continues long enough, will pass through all 
tliese forms. We may illustrate it by applying 
the experience of the past to the primitive state 
before outlined. After the state, as suggested, 
has passed beyond the patriarchal condition 
and no one man is the father of the commu- 
nity, the government will be a monarchy, obey- 
ing in the first instance the man best fitted to 
rule. Greatness is only a combination of op- 



portunity with good common -sense and a par- 
ticular capac-ity for the work most essential for 
the prosperity of the state. Greatness does not 
consist in a general superiority, but simply a 
superior knowledge of how to do a particular 
thing required, at a particular time and un- 
der particular circumstances. To illustrate : In 
primitive times, when the chief occupation of 
the tribes was fighting and looting each other, 
a weak and timid man with a knowledge of all 
the sciences, but with no means of making 
them useful, would be inferior to the man who 
possessed strength and courage, though densely 
ignorant of everything but the art of fighting. 
Such a man, by his skill in warfare, would 
be naturally selected as a king. The men who 
had most approved themselves in battle would 
be specially rewarded by him, and thus consti- 
tute the nucleus of an aristocracy. So long as 
this king lived and reigned he would probably 
govern wisely and' well, and would so establish 
his power that upon his death it would descend 
to his oldest son, ordinarily, as being the 
strongest. This son might also rule wisely and 
well, and l^y so doing so strengthen his power 
that when he transmitted it to his son he 
would be an absolute monarch. Possessing 
the power transmitted hj his father without 
his virtues, he would very soon become a tyrant. 



10 

Ultimately his rule would become so oppressive 
that there would be revolt, not against the 
form of government, but against the ruler, and 
this revolt would in every instance, as in every 
instance in the past it has been, be led by the 
aristocracy, for the simple reason that the vio- 
lence of an absolute ruler in a monarchical 
government in which there is an aristocratic 
class, is always more felt by that class than l^y 
the common people. To preserve themselves 
from oppression and possible annihilation, they 
would ally themselves with the common peo- 
ple, and thus overturn the tyranny which grew 
out of monarchy. The name of king, or mon- 
arch, or any other single ruler being made 
odious, the government would be adminis- 
tered l^y the aristocracy, and as long as the 
original members of the aristocracy lived they 
would probal)ly, admonished by the fate of the 
monarch they had overthrown, rule justly ; but 
their successors, realizing their power without 
emulating the virtues of their fathers, would 
soon T^egin to wrangle among themselves for 
power, and some combination of the strongest 
families would assume supreme control and thus 
become an oligarchy. With tlie king deposed 
and the aristocracy practically destroyed, there 
would be in the state only the two parties — 
the oligarchy and the people. The oppression 



11 



of this form of government being too great to 
be borne, the common people, aided by the 
various members of the original aristocracy who 
had been crushed out by the oligarchy, would 
unite to overturn the government, and by be- 
ing united would be, as the people always have 
been, successful. The new government thus 
created, being a government of the people, 
would be what is commonly called a democ- 
racy ; though it is worth noting that there is 
no instance in history of such a thing as a pure 
democracy, nor is it possible to establish one, 
for the simple reason that in a pure democ- 
racy every individual has an absolute veto 
upon all the others, and it is simply another 
word for anarchy, into which I am sorry to 
say, all democracies of ancient times sooner 
or later degenerated. Being a democracy, or 
rather, being in a state of anarchy, by reason 
of the lack of a head and system of govern- 
ment, the victors would form themselves into a 
general assembly for the government of the 
people, and this general assembly would of 
course divide up into bitterly hostile factions, 
led by dangerous demagogues, which would pro- 
ceed rapidly from intrigues to blows. There 
being no law, there would be no protection. 
Having no government, there would be no se- 
curityr and it would simply be a disintegration 



12 

of society — the rule of the strong, in which of 
<-ourye the weakest would go to the wall. Out 
of this state of anarchy would arise some strong 
man, originally a demagogue, who, securing the 
largest following, would ultimately usurp the 
powers of government, and, having destroyed 
the last vestige of aristocracy, would rule su- 
preme above the people. 

These propositions are abundantly illustrated 
and demonstrated by the history of nearly ev- 
ery city of ancient Greece and of nearly every 
city of Italy during the middle ages ; and in 
modern days we have seen the anarchy of Paris 
produce Napoleon, the tyrant of France. 

It must not be supposed that during the tran- 
sitions, such as I have briefly sketched, there 
were not thoughtful men attempting to devise 
some system of stahle government for their dis- 
tracted country. On the contrary, in every city, 
(and it should be said in passing that in an- 
cient times the cities constituted governments of 
themselves,) there were learned men attempting 
to remedy the evils which constantly afflicted 
their country. The division of the people by a 
natural law into the one, the few and the many, 
has always been recognized by every writer of 
ancient or modern days, and an attempt has 
been made from very early times to contrive a 
system of checks and balances by which an 



13 

equilibrium could be established between the 
different powers. The nature of monarchy, aris- 
tocracy and democracy was as well known in 
the days of Herodotus, the father of history, 
as at the present day, and various efforts were 
made to devise some system of government 
which should preserve an equilibrium between 
the classes representing these various forms of 
government, and the bloody overthrow of many 
governments in the past has been due entirely 
to an ignorance of the system of checks and 
balances, ultimately adopted by England and 
taken and improved by us. It was early seen 
that a government which should have any free- 
dom at all should be a representative one, in 
which the aristocracy and the people should 
have a share, but the evil was that the two 
bodies met in one assembly. It was believed, 
for instance, in Florence, when the people had 
practically secured control of the government, 
that no harm could come by allowing the aris- 
tocracy a minor representation, in an assembly 
composed of representatives of both classes. It 
proved then, as it had proved before and has 
proved since, and always will prove, a failure, 
and a dangerous one. Though the aristocracy 
were in the minority, they were enabled by 
their superior wealth, their following and their 
intelligence, to corrupt the commons with whom 



14 

they were associated, and to gradually re --as 
sume and wield the real power of the govern- 
ment, though nominally it was still in control 
of the commons. The experiment of representa- 
tion of classes in a common assembly has been 
tried in aristocratic republics as well as in dem- 
ocratic ones, and always with the same result. 
It was reserved for England to discover the 
true balance of powers, which was to separate 
the executive from the legislative — to divide 
the legislative into two bodies, each with a veto 
upon the other, and to make the judiciary sep- 
arate from, but not independent of, the others. 
It was the glory of the United States that in 
addition to this system it not only made the 
judiciary independent of the legislative and the 
executive, but made it one of the checks upon 
both. 

The convention which assembled in Philadel- 
phia on the 14th of May, 1787, for the purpose 
of framing a constitution of government for the 
United States, contained more able men than 
were ever assembled before or since for consul- 
tation. There were men who were great soldiers 
in time of war and profound statesmen in time 
of peace. There were great lawyers, philoso- 
phers and statesmen present. There were very 
few members, indeed, who had not given more 
years to the study of the philosophy of govern- 



15 

ment than any man of the present day thinks 
it necessary to bestow upon any subject. They 
had read the history of all the republics, mon- 
archies and democracies of ancient times, and 
had thoroughly advised themselves as to the 
strength and weakness of the various forms of 
government with which experiments had been 
made through tlie centuries. They were nearly 
all personally acquainted with John Adams, the 
framer of the constitution of Massachusetts, 
whose knowledge of those matters was phenom- 
enal, and had availed themselves of that knowl- 
edge in preparing themselves for the task before 
them. While they had an excellent model be- 
fore tliem in the unwritten constitution of Eng- 
land, there were many essential points which 
they had to determine for themselves, and for 
which there were no precedents in history. 

They had, moreover, to devise at one time a 
complete and harmonious system of government 
— a task which no nation at that time had ever 
undertaken. The constitution of England, in 
other words its common law, was the growth 
and accumulation of centuries, the product of 
the customs, traditions and habits of the Eng- 
lish people from the earliest time, and there 
was, therefore, no logical method in its arrange- 
ment. Our convention, therefore, while it availed 
itself of the wisdom of the English constitution. 



16 

was not indebted to it for the form in which 
they made our own. The makers of our consti- 
tution knew from abundance of experience, and 
particularly from the fact that England was the 
only stable government on earth which had en- 
dured for centuries, that the best form of gov- 
ernment was one composed of the three simple 
forms of government known as monarchy, aris- 
tocracy, and democracy. 

We all understand, and upon 4th of July pro- 
claim the fact, that the framers of our constitu- 
tion were not willing to establish a monarchy 
on this continent, but we do not understand so 
thoroughly as we ought to, that they held a 
pure democracy equally abhorrent. They liad 
learned the great truth, which we have either 
forgotten or never knew, that the tyranny of 
the many is more to be dreaded than the tyr- 
anny of the one or the few. They knew, if we 
do not, that a mob is more dangerous and more 
bloodtliirsty than a monarch. Neither were they 
willing to establish anything approaching an 
aristocratic form of government : their desire was 
to frame a constitution of government which 
should combine all that was best and reject all 
that was worst of the three forms of govern- 
ment before mentioned, and they performed tliat 
task in a way to entitle them to the eternal 
gratitude of their descendants. They knew that 



17 

no government could exist without a distinct 
head, as tliey had seen the Siamese-twin system 
of kingsliip tried in the consular governments 
of Rome, and knew the bloody and disastrous 
results following therefrom. They had observed 
the same evils resulting from the numerous ex- 
periments made in the smaller Italian cities in 
the middle centuries, and were thoroughly con- 
vinced that one responsible head of the govern- 
ment should be chosen. They knew that the 
legislative power should be vested in two dis- 
tinct houses, each having an absolute veto on 
the other, and they therefore provided for a 
house of representatives and for senators. They 
knew also of the natural division of the people 
into the one, the few, and the many, and they 
therefore made of the senate an aristocratic body 
modeled after the House of Lords, and with as 
full an intention that it should be an aristo- 
cratic body as the English had when they cre- 
ated theirs. They had before them for their 
guidance the Massachusetts constitution of 1780, 
the work of John Adams, and availed themselves 
largely of that wonderful document, which con- 
tained within itself not only the correct rules 
of government, but profound philosophical dis- 
sertations upon the nature of government ; and 
I cannot refrain from quoting a few expressions 
therefrom : 



18 

"The end of the institution, maintenance and 
administration of government is to secure the 
existence of a body-politic to protect it, and to 
furnish the individuals who compose it with 
the power of enjoying in safety and .tranquility 
their natural rights and the blessings of life ; 
and whenever these great objects are not ob- 
tained the people have a right to alter the gov- 
ernments and to take measures necessary for 
their safety, prosperity and happiness. The 
body-politic is formed by the voluntary associa- 
tion of individuals by which the whole people 
covenants with each citizen and each citizen 
with the whole people, that all shall be gov- 
erned by certain laws for the common good. It 
is the duty of the people, therefore, in framing 
a constitution of government, to provide for an 
equitable mode of making laws, as well as for 
an impartial interpretation and a faithful exe- 
cution of them, that every man may at all times 
find his security in them. ... 

"No man, nor corporation nor association of 
men, have any other title to obtain advantages 
or particular and exclusive privileges distinct 
from those of the community, than what rises 
from the consideration of services rendered to 
the public ; and this title being in nature neither 
hereditary nor transmissible to the children or 
descendants or relations by blood, the idea of a 
man born a magistrate, law -giver or judge is 
absurd and unnatural." 

That constitution also provided that the sen- 
ators should have a freehold of at least 300 
pounds, while a member of the lower house 
should be required to have a freehold of only 
100 pounds. That he believed that the senate 



19 

should be an aristocratic body is evident from 
the following language from his work on con- 
stitutions, and the reasons therein given have 
stood the test of time. It is safe to say, too, 
that the members of the constitutional eonven- 
tion believed as he did when the Senate of the 
United States was created : 

" The rich, the well born and the able, acquire 
an influence among the people, that will soon be 
too much for simple honesty and plain sense, in 
the house of representatives. The most illustri- 
ous of them must therefore be separate from the 
mass, and placed by themselves in a senate ; that 
is, to all honest and useful intents, an ostracism. 
A member of the senate, of immense wealth, the 
most respected birth, and transcendent abilities, 
has no influence in a nation in comparison with 
what he would have in a single representative as- 
sembly. When a senate exists, the most powerful 
man in the state may be safely admitted into the 
house of representatives, because the people have 
it in their power to remove him into the senate 
as soon as his influence becomes the great object 
of ambition ; and the richest and the most saga- 
cious wish to merit an advancement to it by ser- 
vices to the public in the house. When he has 
obtained the object of his wishes, you may still 
hope for the benefits of his exertions without 
dreading his passions; for the executive power 
being in other hands, he has lost much of his in- 
fluence with the people, and can govern very few 
votes more than his own among the senators." 

Making the senators elective by the state leg- 
islature and fixing their term for six years, and 
so arranging the time of elections that the body 



20 

should practically be perpetual, was a very wise 
thing for another reason. The masses of any 
government are easily led away by the excite- 
ment of the moment, and, under the harangue 
of dangerous demagogues, are liable to commit 
great follies. Their immediate representatives 
in the lower house of Congress are naturally 
compelled to carry out any wild and visionary 
scheme proposed by them ; but the senators, 
having six-years terms to serve, are in a position 
to more coolly and philosophically survey the 
situation and to determine whether or not the 
proposed legislation is wise, and if they believe 
it detrimental to the best interests of the coun- 
try, will feel perfectly safe in vetoing it, firm in 
the belief that before their term expires the 
passions will have been allayed, and those who 
urged the wild measure will in their hearts 
thank them for having killed it. Indeed, a 
check upon hasty legislation, the result of pas- 
sion, prejudice or disaster occasioned by panics, 
is essential to the stability of our government. 

De Tocqueville, in his "Democracy in Amer- 
ica," notices and praises this feature of our gov- 
ernment. "Both emanate," he says, speaking of 
the house and the senate, " equally from the peo- 
ple, but do not represent the people exactly in 
the same manner ; the office of the one is to fol- 
low the daily impressions, that of the other to 



21 

obey the habitual instincts and permanent incli- 
nations of the community." 

"To a people as little blinded by prejudice," 
says Madison, addressing the American people in 
defense of the senate, "or corrupted by flattery, 
as those whom I address, I shall not scruple to 
add, that such an institution may be sometimes 
necessary, as a defense to the people against their 
own temporary errors and delusions. As the cool 
and deliberate sense of the community ought, in 
all governments, and actually will, in all free gov- 
ernments, ultimately prevail over the views of its 
rulers : so there are particular moments in public 
affairs, when the people, stimulated by some irreg- 
ular passion, or some illicit advantage, or misled 
by the artful misrepresentations of interested 
men, may call for measures which they themselves 
will afterwards be the most ready to lament and 
condemn. In these critical moments, how salu- 
tary will be the interference of some temperate 
and respectable body of citizens, in order to check 
the misguided career, and to suspend the blow 
meditated by the people against themselves, until 
reason, justice, and truth, can regain their author- 
ity over the public mind. What bitter anguish 
would not the people of Athens have often es- 
caped, if their government contained so provident 
a safeguard against the tyranny of their own pas- 
sions ! Popular liberty might then have escaped 
the indelible reproach of decreeing to the same 
citizens the hemlock on one day, and statues on 
the next." 

Pollock, in his Oxford Lectures, says : 

"At no time has it been fitter for us to be 
put in mind that the effective power of law is 
not only the work but the test of a civilized 



22 

commonwealth, and that law, as a great English 
writer has said, is in its nature contrary to such 
forces and operations as are ' violent and casual. ' " 

The judiciary was modeled in the main after 
that of England, and I am of the opinion that 
the framers of our constitution did not them- 
selves see how vast the difference would ulti- 
mately become between the two systems, by 
reason of the simple fact that ours was a writ- 
ten constitution, placing a check upon all the 
departments of government, while in England 
the only checks were upon the monarch ; that 
is, the only written check which England had 
was Magna Charta, which was extorted by the 
barons, and simply placed a limit upon the 
power of the king ; there being no limitation 
whatever upon tlie power of parliament, which 
was then and is now supreme. Consequently, 
in England all that the judges could do was to 
interpret the acts of parliament, but could hot 
of course declare them in violation of a consti- 
tution which did not exist. The judges, there- 
fore, while in one sense independent, were 
merely adjuncts to the king and the parlia- 
ment, to decide causes between the subjects, 
take cognizance of criminal prosecutions, and 
act as advisers of the king and the parliament ; 
and in a general way this was believed by the 



23 

framers of our constitution to be the extent of 
their dnty here. 

It is a cnrions fact that the power of the ju- 
dicial department in this respect was less con- 
sidered by the framers of onr constitution than 
any other single question presented. That it 
was a distinct branch of the government, inde- 
pendent of both the executive and the legis- 
lative and a strong check upon both, was but 
dimly seem, and that it was the greatest of all 
the checks was not dreamed of. It is curious 
to notice that John Adams, looking back across 
the ages, could see plainly the mistakes of all 
previous governments in not establishing a sys- 
tem of checks and balances, and was yet ap- 
parently unable to see that the independent 
judiciary Avhich he helped to establish would 
be one of the checks of our system. There is 
nothing anywhere in his writings to be found 
showing that he considered the judiciary as 
anything more than an auxiliary and assistant 
to the other powers of government ; and yet the 
mere fact that we alone of all nations of the 
world had by a written constitution placed re- 
strictions upon the power of the legislative as 
well as the executive, made it absolutely neces- 
sary that the courts of the United States should 
have the power to declare an act of the national 
legislature null and void, if in their judgment 



24 

such legislation was not warranted l^y the con- 
stitution. It seems strange now that the exist- 
ence of this j)ower could have been disputed, 
and stranger still that it was not clearly seen 
when our constitution was adopted. It must be 
apparent at a glance that our constitution would 
have no binding force as a check upon legisla- 
tion unless there resided somewhere power to 
declare whether or not a given law was in vio- 
lation of that constitution, and this power could 
only be exercised by the judiciary. To say that 
the legislature should itself sit in judgment up- 
on its own power to legislate, would be to de- 
clare that the constitution had no force. And 
yet, the proposition that the courts had the 
power to declare an act of the legislature void 
because of its repugnance to the constitution, 
was received with great disfavor by many emi- 
nent men when the claim was first asserted. The 
first case in which it ever arose was that of Com- 
monwealth V. Caton, in Virginia, in 1782, in the 
course of which Judge Withe emphatically as- 
serted that power, saying : 

"Nay, more, if the whole legislature — an event 
to be deprecated ^ — should attempt to overleap the 
boundaries prescribed to them by the people, I, 
in administering the justice of the country, will 
meet the united powers at my seat in this tri- 
bunal, and, pointing to the constitution, will say 
to them, 'Here is the limit to your authority; 
hither shall you go, but no farther.'" 



25 

The president of the court, Mr. Pendleton, 
more conservatively expressed himself in the fol- 
lowing language, which conclusively shows that 
the claim was new at least to the country : 

"But how far this court, in whom the judi- 
cial powers may in some sort be said to be con- 
centrated, shall have the power to declare the 
nullity of a law passed in this form of the 
legislative power, without exercising the power 
of that branch, contrary to the plain terms of 
the constitution, is indeed a deep, important, 
and I may add tremendous question, the de- 
cision of which might involve consequences to 
which gentlemen may not have extended their 
ideas. " 

The other judges were of the opinion that 
the court had the power claimed for it. A few 
other cases involving the same question were 
argued in the State courts immediately before 
and shortly after the adoption of the Federal 
Constitution ; and yet when the question of the 
power of the Supreme Court to declare an act 
of Congress void by reason of its repugnancy to 
the constitution first came before the court, in 
Marhury v. Madison, 1st Cranch, 137, it was 
treated with as much gravity as if it had never 
been raised before nor thought of. In fact, it 
had very rarely occurred to American lawyers, 
trained under the English system of jurispru- 
dence, that the court could under any circum- 
stances assume the right to set aside an act of 



26 

the legislature. It was in this case authorita- 
tively settled that the Supreme Court had the 
power to declare an act of Congress void if in 
violation of the constitution, and the assertion 
was made and never since contradicted, that the 
constitution was an absolute limit upon legisla- 
tive power, and that Congress did not possess 
the omnipotence of Parliament. The correctness 
of that opinion was so fully vindicated by the 
inflexible logic of Marshall, that it has never 
since been questioned, and I cannot refrain from 
quoting what he says : 

"The question whether an act repugnant to 
the constitution can become the law of the land, 
is a question deeply interesting to the United 
States, but happily not of an intricacy propor- 
tioned to its interest. It seems only necessary to 
recognize certain principles supposed to have 
been long and well established to decide it. . . . 
The powers of the legislature are defined and lim- 
ited ; and that these limits may not be mistaken 
or forgotten, the constitution is written. To what 
purjDose are powers limited and to what purpose 
is that limitation committed to writing, if these 
limits may, at any time, be passed by those in- 
tended to be restrained i The distinction between 
a government with limited and unlimited powers 
is abolished if those limits do not confine the per- 
son on whom they are imposed, and if acts pro- 
hibited and acts allowed are of equal obligation. 
It is a proposition too plain to be contested, that 
the constitution controls any legislative act re- 
pugnant to it, or that the legislature may alter 
the constitution by an ordinary act. Between 



27 

those two alternatives there is no middle ground. 
The constitution is either a superior, paramount 
law, unchangeable by ordinary means, or it is on 
a level with ordinary legislative acts, and, like 
other acts, is alterable when the legislature shall 
please to alter it. If the former part of the alter- 
native be true, then a legislative act contrary to 
the constitution is not law ; if the latter XDart be 
true, then written constitutions are absurd at- 
tempts, on the part of the people, to limit a power 
in its own nature illimitable. ... If an act 
of the legislature repugnant to the constitution is 
void, does it, notAvithstanding the invalidity, bind 
the courts, and oblige them to give it effect ? Or, 
in other words, though it be not law, does it con- 
stitute a rule as operative as if it was a law ? This 
would be to overthrow in fact what was estab- 
lished in theory, and would seem at first view an 
absurdity too gross to be insisted on. It shall, 
however, receive a more attentive consideration. 
It is emphatically the province and duty of the 
judicial department to say what the law is. Those 
who apply the rule to particular cases must of ne- 
cessity expound and interpret that rule. If two 
laws conflict with each other, the courts must de- 
cide on the operation of each. So if a law be in 
opposition to the constitution ; if both the law 
and the constitution apply to a particular case, so 
that the court must either decide the case con- 
formably to the law, disregarding the constitution, 
or conformably to the constitution, disregarding 
the law, — the court must determine which of these 
conflicting rules governs the case. This is of the 
very essence of judicial duty. If, then, the courts 
are to regard the constitution, and the constitu- 
tion is superior to any ordinary act of the legis- 
lature, the constitution, and not such ordinary act, 
must govern the case to which they both apply." 



28 



r 



We have, then, ass the three powers of the 
government, the executive, legislative, and judi- 
cial— ^ each a complete check upon the other. 
So long as our constitution is maintained in its 
integrity and no change is made in the power 
of the three departments, so long will our lib- 
erties be secured. In theory, our system is as 
perfect as human ingenuity has ever devised, 
and it may well be doubted whether the future 
will ever be able to improve upon it^ I 

Where, then, is the danger t Not from the 
executive, for his power is so circumscribed and 
limited that it is impossible for him to do vio- 
lence to the constitution or endanger the lib- 
erties of the citizen. If he violates the consti- 
tution in a public matter, he is dealt with by a 
court of impeachment. If he, by an act of ar- 
bitrary power, attempts to injure the humblest 
citizen in the land, the courts afford swift and 
prompt protection. If he attempt by violence 
to subvert the constitution, the people would 
crush him. 

The legislature is equally impotent for harm. 
It may pass bad laws, but these only work in- 
convenience and may be rectified by the people 
electing a new Congress to undo the evils of 
the law. If it attempt legislation repugnant to 
the constitution, the courts are a complete check 
upon it. 



29 

The judiciary, which has been so much de- 
nounced, is still more impotent for evil. It has 
neither the sword nor the purse ; it has neither 
legislative nor executive functions. It can do 
nothing but declare what the law is, and then 
only when properly invoked by some one hav- 
ing the right to call for its interpretation. It 
can do nothing towards the enforcement of its 
own mandates ; it cannot serve its own process ; 
cannot enforce its own judgments ; can neither 
imprison a convicted criminal, nor levy an exe- 
cution upon the property of a judgment debtor. 
"It has," as Hamilton says, "neither force nor 
will, but merely judgment." Outside of and 
beyond the mere declaration of what the law 
is, it must look to the executive power of the 
nation to enforce its process or decrees, and 
this not only can be, but has been, withheld 
both by the executive and the legislative pow 
ers. The State of Georgia convicted a mission- 
ary for preaching to the Indians. The Supreme 
Court of the United States held the law under 
which the conviction was had, to be unconsti- 
tutional, and ordered the release of the prisoner. 
The authorities of Georgia refused obedience to 
the order, and the Governor remarked that he 
would sooner hang the prisoner than release him. 
An appeal was made to President Jackson for 
power to enforce the mandate of the court, which 



30 

he peremptorily refused, remarking, ' ' John Mar- 
shall made this decision — now let him execute 
it." And this infamous sentiment, I have no 
doubt, was loudly applauded by men who did 
not understand how clearly it was the duty of 
the executive to enforce the mandates of the 
court. 

The judiciary, then, having no power to leg- 
islate, having no control of the sword or the 
purse, having no power to execute its process 
or enforce its judgments, cannot be a serious 
danger. Where, then, is the danger, if neither 
of the three branches of the government nor 
the three combined menace our liberties^ The 
danger in this case, as in all other democracies, 
is from the people themselves. In their strug- 
gle for more power and larger liberty, which 
simply means license, they aim a blow at imag- 
inary evils and mortally wound themselves. 
The constitution is a chain of flawless steel to 
bind all the departments of government ; it is 
a rope of sand to bind the people. The one 
and the few are the minority, and cannot change 
or impair the fundamental law of the land. 
The many are the makers of the law, and may 
at any time, under the influence of passion or 
prejudice, led by ignorant and vicious dema- 
gogues, in one day, subvert the only free gov- 
ernment the world has ever known. 



m 



31 

The tendency in this direction is very marked 
in the United States at present. In various 
shapes and under various guises the property of 
the few is being confiscated under the forms of 
law. The rights of corporations are ignored and 
the very name is made a synonym for infamy. 
We all know this fact, and we may soothe our 
conscience with the thought that the assault 
upon property is confined to corporations and 
will go no farther. It is a delusion, and a dan- 
gerous one, to believe so. The rights of the 
corporations and their property are assailed, not 
because they are inimical to the general inter- 
ests, not because corporations have done any- 
thing to be outlawed, but simply because the 
rights in that ijroperty are held by the few 
and not distributed among the many. What 
is true to-day of one form of property will be 
true to-morrow of any other form of property 
held by less than a majority of the citizens. 

Allison makes an exposition of this state of 
affairs too clear and too strong to be misunder- 
stood, and too true to be denied. He says : 

"As a natural consequence of this state of 
things there is, in opposition to the will or 
passions of the majority, no lasting security 
either for life or property in America in cases 
where the public mind is vehemently excited. 
Hitherto, indeed, no direct attack on property 
has been made, at least where it is vested in 



32 

land; for this simple reason, that the majority 
are themselves land-owners, and therefore any- 
such system would be an attack upon their own 
interests. But the system of spoliating that 
species of property in which the majority do 
not participate, and for which they feel no in- 
terest, has already been carried to a most fright- 
ful extent. 

"This is nothing peculiar to America; in 
every country in the world the majority, under 
similar circumstances and similar political insti- 
tutions, would do the same.'' 

Another evidence of the disposition of the 
people to destroy the government of their own 
creation is found in the increasing demand that 
the Senate of the United States be either 
abolished or the Senators be elected by the 
people, and for a shorter term than six years ; 
and if the experience of the past is good for 
anytliing, it certainly proves that if the Senate 
were merged in the House and we were gov- 
erned in our legislature by one assembly, this 
Grovernment could not possibly survive long. 
As it is, the Senate is powerless. Its position 
is, as Adams says in a passage elsewhere quoted, 
an ostracism and an isolation ; it can pass no 
bad law without corrupting the lower house, 
and if in its isolated position it could thus cor- 
rupt the lower house of Congress, how much 
more easily could its members do it if they 
were mingled with the lower house as brother 



88 

members ! It can, then, at the most, only ob- 
strnct the passage of a good law, and it must 
be remembered that the liberties of the people 
are more endangered by the enactment of bad 
laws than by the failure to pass good ones. 
Moreover, no legislative body was ever yet con- 
stituted which for any length of time would 
refuse to pass a good law. Such a refusal 
would only work an inconvenience, and would 
be promptly rectified. The danger to all gov- 
ernments is in the passage of bad laws. 

No reason has ever been assigned, and none 
of any weight can be assigned, why the Senate 
should not be elected as it is, and the Senators 
should not hold for six years. In fact, making 
the tenure of office six years is, as I have be- 
fore pointed out, one of the most important 
provisions to protect against hasty and ill-con- 
sidered legislation, that there is in our consti- 
tution. 

Another great danger is in the assault made 
upon our judiciary. This branch of the gov- 
ernment is being weakened by assaults from 
without, and by weakness from within, itself. 
It has grown to be a common charge on the 
part of a number of well-meaning people, and 
indorsed by some few lawyers, that the power 
of the courts is too great. This, if it means 
anything, can only mean tiiat the courts should 



34 

not have power to declare a law niiconstitn- 
tioiial. And yet, as I hope I liave made mani- 
fest, withont this power being vested in the 
court there would be no constitution. If some 
of those who complain of too great power in 
the judiciary were to be ordered imprisoned by 
an act of the legislature, they would promptly 
apply to the courts to release them, and it 
would seem to them perfectly appropriate that 
the court should release them, on the ground 
that the act of the legislature ordering their 
imprisonment was in violation of the constitu- 
tion. And yet these same men, when the 
courts, applying the same rule, declare that 
some law which it is believed was intended to 
relieve the unfortunate creditors of our State, is 
unconstitutional and therefore void, inveigh bit- 
terly against the same courts for oppressing the 
poor, and declare that they have too nuicli 
power. The most serious blow at the judiciary, 
however, in my opinion, is too frequently given 
by the judges themselves, especially in an elec- 
tive judiciary. With no disrespect toward an 
elective judiciary, it may safely be said that no 
bench filled by men elected by the people in 
any State in the Union, ever approached in 
dignity, power, clt^arness and courage, the Su- 
preme Court of the United States; and the rea- 
son is not far to seek. It has its foundation 



35 

in human nature, and is shared by all of us. 
The men whose tenure is during good behavior 
understand that good behavior will continue 
them in their place. The men who hold by 
the votes of the constituent understand that 
the votes of the constituent which put them in 
can put them out, and they feel bound to re- 
gard the wishes of those who elect them, to 
some extent at least. 

' ' That inflexible and uniform adherence to the 
rights of the constitution," Hamilton says, "and 
of individuals, which we perceive to be indis- 
pensable in the courts of justice, can certainly 
not be expected from judges who hold their of- 
fices by a temporary commission. Periodical ap- 
pointments, however regulated or by whomsoever 
made, would in some way or other be fatal to 
their necessary independence. If the power of 
making them was committed either to the exec- 
utive or legislative, there would be danger of 
an improper complaisance to the branch which 
possessed it ; if to both, there would be an un- 
willingness to hazard the displeasure of either ; 
if to the people, or to persons chosen by them 
for the special purpose, there would be too great 
a disposition to consult popularity to justify a 
reliance that nothing would be consulted but the 
constitution and the laws." 

John Marshall, sitting as a circuit judge, is- 
sued a subpoena duces tecmn for the President 
of the United States, with the full knowledge 
that by so doing he incurred the enmity of the 
administration and both branches of Congress. 



86 

He knew that if he was doing his duty he could 
not be touched nor removed by an angry ad- 
ministration. But, great as he was, it is not 
unfair to his memory to suggest that if the men 
whom he angered by his action had had the 
power to remove him from his position by their 
vote, without assigning any reason therefor, he 
might have hesitated before taking the step. 

If, then, any change is to be made in our 
judiciary, our judges should be appointed for 
life, and not elected for a short term, with the 
ever-recurring prospect before them of the ne- 
cessity of appealing to an unstable people for 
re-election. It is in effect asking a constituent 
to indorse their action, and nothing could be 
more repugnant to the letter and the spirit of 
our constitution than an "indorsement" by the 
people of judicial action. The only question 
which any man or any body of men have a 
right to ask of a judge is. Has he decided cor- 
rectly 'i Has he done his duty 'i And yet these 
are the very last questions which the electors 
ask when they sit in judgment on their judges, 
and if they had their way would soon make 
our government one of men and not of laws. 

In many of the cities of Italy no citizen was 
allowed to be a judge, but one was imported 
from the outside, and this for the very wise pur- 
pose of securing absolute impartiality. A citi- 



37 

zen would know and be known to a great many 
of Ills fellows, and, however honestly inclined, 
would be in spite of himself prejudiced by his 
surroundings and his knowledge of the parties 
litigant ; whereas, a judge brought from the out- 
side and denied the right of citizenship would 
not have any bias, and would, moreover, under- 
stand that his continuance in office depended 
upon his fairness and uprightness. The substi- 
tute for that in this country should be an ap- 
pointive judiciary. 

If these assaults upon the Senate for being 
just what its creators intended it should be, and 
upon the judiciary for doing precisely what its 
creators intended it should do, continue in this 
country, it is not difficult to foretell the end. 
The danger menacing any people whose govern- 
ment is usurped by the mass is pointed out in 
language so much better than any I could use, 
by three of the most profound thinkers the 
world has ever produced, that I choose their 
language instead of my own, to express my 
views on the subject : 

"An insatiable thirst of liberty destroys de- 
mocracy. When a city is under a democracy 
and is thirsting after liberty, and happens to 
have bad cup-bearers and grows drunk with an 
unmixed draught of it, beyond what is neces- 
sary, it punishes even the governors, if they 
will not be entirely tame, and afford a deal of 



38 

liberty, accusing them as corrupted, and lean- 
ing towards oligarchy. Such as are obedient to 
magistrates are abused, as willing slaves and 
good for nothing. . . . And at length they 
I the people] regard not the Icnvs, ivritten or wi- 
irritten, that no one whatever, by any manner' 
of means, may become their master. ... 

"Tlius licentiousness destroys the democracy. 
Out of no other republic is tyranny consti- 
tuted but out of democracy: and out of the 
most excessive liberty, the greatest and most 
savage slavery." — Plato. 

"In all free states,"' Swift says, "the evil to 
be avoided is tyranny ; that is to say, the summa 
i?npe7'ii, or unlimited power, solely in the hands 
of the one, the few, or the many. Though we 
cannot prolong the period of a commonwealth 
beyond the decree of heaven, or the date of 
its nature, any more than human life beyond 
the strength of the seminal virtue ; yet we may 
manage a sickly constitution, and preserve a 
strong one ; we may watch and prevent acci- 
dents ; we may turn off a great blow from with- 
out, and purge away an ill humour that is 
lurking within ; and render a state long lived, 
though not immortal. 

" In Rome, from the time of Romulus to Julius 
Caesar, the commons were growing by degrees 
into power, gaining ground upon the patricians, 
inch by inch, until at last they quite over- 
turned the balance, leaving all doors open to 
popular and ambitious men, who. destroyed the 
wisest republic, and enslaved the noisiest people, 
that ever entered on the stage of the w^orld. 

"It is an error to think it an uncontroulable 
maxim, that power is always safer lodged in 
many hands than in one ; for if these many 
hands be made up from one of those three di- 



39 

visions, it is plain, from the example produced, 
and easy to be paralleled in other ages and 
countries, that they are as capable of enslaving 
the nation, and of acting all manner of tyranny 
and oppression, as it is possible for a single 
person to be, though we . should suppose their 
number not only to be four or five hundred, 
but three thousand. In order to preserve a 
balance in a mixed state, the limits of power 
deposited with each party, ought to be ascer- 
tained and generally known : the defect of this 
is the cause of those struggles in a state, about 
prerogative and liberty ; about encroachments 
of the few upon the rights of the many, and 
of the many upon the privileges of the few ; 
which ever did, and ever will, conclude in a 
tyranny ; first either of the few or the many, 
but at last, infallibly, of a single person : for 
whichever of the three divisions in a state is 
upon the scramble for more power than its 
own, as one of the three generally is, (unless 
due care be taken by the other two) ; upon 
every new question that arises, they will be 
sare to decide in favour of themselves ; they will 
make large demands, and scanty concessions, 
ever coming off considerable gainers ;-r- thus at 
length the balance is broke, and tyranny let in, 
from which door of the three it matters not. 

"The desires of men, are not only exorbi- 
tant, but endless : they grasp at all ; and can 
form no scheme of perfect happiness with less. 
Ever since men have been formed into govern- 
ments, the endeavors after universal monarchy 
have been bandied among them : the Athenians, 
the Spartans, the Thebians, and the Achaians, 
several times aimed at the universal dominion 
of Greece : the commonwealths of Carthage and 
Eome affected the universal empire of the 



40 

world : in like manner has absolute power been 
pursued, by the several powers in each particu- 
lar state, wherein single persons have met with 
most success, though the endeavors of the few 
and the many have been frequent enough ; yet 
being neither so uniform in their designs, nor 
so direct in their views, they neither could 
manage nor maintain the power they had got, 
but were deceived by the popular ambition of 
some single person : so that it will be always a 
wrong step in policy, for the nobles or com- 
mons to carry their endeavors after power so 
far as to overthrow the balance. With all re- 
spect for popular assemblies be it spoken, it is 
hard to recollect one folly, infirmity or vice, to 
which a single man is subject, and from which 
a body of commons, either collective or repre- 
sented, can wholly be exempt ; from whence it 
comes to pass, that in their results have some- 
times been found the same spirit of cruelty 
and revenge, of malice and pride ; the same 
blindness and olistinacy, and unsteadiness ; the 
same ungovernable rage and anger ; the same 
injustice, sophistry, and fraud, that ever lodged 
in the breast of any individual. When a child 
grows easy by being humoured, and a lover 
satisfied by small complianc-es without furtlier 
pursuits, then expect popular assemblies to be 
content with small concessions. If tliere could 
one single example be brought from the whole 
compass of history, of any one popular as- 
sembly, who, after beginning to contend for 
power, ever sat down cpiietly with a certain 
share ; or of one that ever knew, or pro- 
posed, or declared what share of power was 
their due, then might tliere be some hopes, 
that it was a matter to be adjusted by 
reasonings, (conferences or debates. An usurp- 



41 

ing populace is its own dupe, a mere 
under-worker, and a purchaser in trust for 
some single tyrant, whose state and power they 
advance to their own ruin, with as blind an 
instinct, as those worms that die with weaving 
magnificent habits for beings of a superior or- 
der. The people are more dexterous at pulling 
down and setting up, than at preserving what 
is fixed ; and they are not fonder of seizing 
more than their own, than they are of deliver- 
ing it up again to the worst bidder, with their 
own into the bargain. Their earthly devotion 
is seldom paid to above one at a time, of their 
own creation, whose oar they pull with less 
murmuring and more skill, than when they 
share the leading, or even hold the helm." 

Hamilton says : 

"An unenlightened zeal for the energy and 
efliciency of government, will be stigmatized as 
the offspring of a temper fond of power, and 
hostile to the principles of liberty. An over- 
scrupulous jealosy of danger to the rights of the 
people, which is more commonly the fault of the 
head than the heart, will be represented as mere 
pretense and artifice. . . . The stale bait for 
popularity at the expense of public good. It 
will be forgotten, on the one hand, that jealosy 
is the usual concomitant of violent love, and 
that noble enthusiasm of liberty is too apt to be 
infected with a sort of narrow and illiberal dis- 
trust. On the other hand, it will be equally for- 
gotten, that the vigor of government is essential 
to the security of liberty ; that in the contem- 
plation of a sound and well-informed judgment, 
their interests can never be separated ; and that 
a dangerous ambition more often lurks behind 
the specious mask of zea,l for the rights of tha 



42 

people, than under the forbidding appearance 
of zeal for the firmness and efficiency of gov- 
ernment. History will teach us that the for- 
mer has been found a much more certain road 
to the introduction of despotism, than the latter, 
and that of those men who overturn the liber- 
ties of republics, the greatest number have be- 
gun their career by paying an obsecpiious court 
to the people ; commencing demagogues, and 
ending tyrants." 

When we look at the above extracts and re- 
flect upon the fact that the first was written 
more than two thousand years ago, the second, 
two hundred years ago, and the last, in the lat- 
ter part of the last century, by one of the 
framers of our constitution, and remember that 
they were all the results of historical study, and 
not the mere theories of visionary dreamers, we 
must be struck with their force, and be con- 
vinced that the dangers they point out undoubt- 
edly lurk in our constitution as they have 
always lurked in other democratic governments 
of the world. 

If Plato knew as the result of actual observa- 
tion, two thousand years ago, that "out of no 
other republic is tyranny constituted but out of 
democracy " ; if Swift, after a careful reading of 
all history, found that it was a false maxim 
"that power is always safer lodged in many 
hands than in one," and challenged history to 
produce an example of any ''one folly, infirmity. 



43 

or vice, to which a single man is subject, and 
from which a body of commons, either collect- 
ive or represented, can wholly be exempt"; 
and if Hamilton was convinced from history, 
"that of those men who had overturned the 
liberties of republics, the greatest number have 
begun their career by paying obsequious court 
to the people, commencing demagogues and end- 
ing tyrants," we must conclude that danger 
from demagoguery always attends upon demo- 
cratic governments. It is a cancer inherent in 
the body-politic, and therefore incurable. If 
this be so, if it is a melancholy fact that all 
free governments are in constant danger from a 
source which sooner or later will cause their 
downfall, it behooves every man who loves his 
country and her institutions, to do what he can 
to retard the evil growth and make his govern- 
ment, as Swift says, "long lived, though not 
immortal." 

This can be done if all members of the bar 
upon every occasion and before any audience, 
political, social, or professional, will tell the 
simple truth. To do this we need more politi- 
cal martyrs ; men not only willing but glad to 
sacrifice all political ambitions, if by so doing 
they will promote the welfare of their country. 
If we would only learn that defeat is never dis- 
honorable, though victoty frequently is ; if we 



44 

could stand firmly by Locke's declaration that 
"An error is not tlie better for being common, 
nor truth the worse for having been neglected,'' 
we could accomplish this. If, still further, we 
could absolutely strangle any political ambitions 
we might have, for the sole purpose of promul- 
gating the truth and enforcing it upon our fel- 
low-citizens ; if we could force upon them the 
conviction that what we were saying was said 
with a full knowledge that it ostracised us po- 
litically, they would be compelled ultimately to 
see that our only motive in telling the truth 
about our government and our demagogues was 
to preserve our government, and they would 
finally believe that we who told unpalatable 
truths were their friends rather than the dema- 
gogues who told them lies, inflamed their pas- 
sions in the pursuit of their own ambitious 
dreatQS, and sought to lead them to their own 
destruction and the downfall of their govern- 
ment. 



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